Slovak Republic 29 October 2008 District Court in Nitra [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/081029k1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 31Cb/27/2007
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Slovak Republic (plaintiff)
BUYER'S COUNTRY: Repubic of Slovenia (defendant)
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
14A [Criteria for an Offer – Basic criterion – intention to be bound in case of acceptance]; 53A ; 53B [Summary of Buyer’s Obligations – Obligation to pay price of goods ; Obligation to take delivery of goods]; 55A [Enforceability of agreements that do not make provision for the price; conflicting views]; 78A [Interest on delay in receiving price or any other sum in arrears]
14A [Criteria for an Offer – Basic criterion – intention to be bound in case of acceptance];
53A ; 53B [Summary of Buyer’s Obligations – Obligation to pay price of goods ; Obligation to take delivery of goods];
55A [Enforceability of agreements that do not make provision for the price; conflicting views];
78A [Interest on delay in receiving price or any other sum in arrears]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Slovak): Unavailable
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [second draft]
Queen Mary Case Translation Programme
29 October 2008 [31Cb/27/2007]
Translation [*] by Juraj Kotrusz [**]
IN THE NAME OF THE SLOVAK REPUBLIC
The District Court in Nitra, deciding by a single judge, JUDr. Sona Vackova, in the case of E., spolocnost s rucenim obmedzenym [Seller], with its registered office in P. X, Slovak Republic, represented by attorney JUDr. M.M., versus D.T. in P.P., d.o.o. [Buyer], with its place of business in R. ___, M. [Republic of Slovenia], regarding payment of 324,044.80 Slovak koruna [Sk] and appurtenances
h a s d e c i d e d a s f o l l o w s:
[Buyer] is obliged to pay [Seller] 8,800.- Euro [EUR] including interest of 14% annually on the sum of 3,800.- EUR for the period from 7 October 2006 until payment and of 14% annually on the sum of 5,000.- EUR for the period from 4 November 2006 until payment, all within three days after the judgment comes into force.
[Buyer] is obliged to pay [Seller] a sum of 54,073.- Sk, as a reimbursement of the costs of the proceedings and for [Seller]'s legal counsel, within three days after the judgment comes into force.
The costs of the proceedings are bound by the state.
[Seller] claimed, in its action filed with the court on 17 September2007, its right to payment of 8,800.- EUR, default interest and reimbursement of the costs of the proceedings on the grounds that [Buyer] did not pay the purchase price under the contracts of sale concluded in oral form.
[Seller] did not appear before the court, was informed about the date of the hearing by its legal counsel and the court therefore tried the case in [Seller]'s absence.
At the hearing, the [Seller]'s legal counsel referred to the 17 September 2007 action with respect to the legal grounds and amount of the claim. The claim emerged from a contract of sale concluded without written confirmation, under which [Seller] delivered goods to [Buyer], who handed it over. [Seller] drew two invoices, one for the sum of 8,800.- EUR and the other for 9,600.- EUR; [Buyer] partially paid both invoices. [Buyer] did not pay the outstanding debt of 8,800.- EUR, corresponding to the sum of 326,044.80 Sk,. [Seller] received a letter from [Buyer] stating that it acknowledges the debt and undertakes to pay it by the end of July 2007. [Buyer] did not fulfil its obligation and [Seller] therefore filed an action with the court, claiming the principal, default interest of 14% annually and reimbursement of the costs of the proceedings.
[Buyer] did not appear before the court, though being duly summoned, and the court therefore tried the case in its absence.
The court gathered evidence by reading the submitted documents and thereby determined the following factual circumstances and qualified them under relevant legal provisions.
The parties to the proceedings have concluded on 6 September 2006 a contract of sale under sec. 409 et seq. of the Slovak Commercial Code, under which [Seller] was obliged to deliver the goods specified in the bill of lading 050006 - T for the price set out in the [Seller]'s price list. The default interest rate was not agreed by the parties. [Buyer] handed over the goods in the [Seller]'s premises.
[Seller] asserted its right to the purchase price by invoice no. 50060007 drawn on 06 September 2006 for the sum of 8,800.- EUR, due on 06 October 2006. [Buyer] paid the sum of 5,000.- EUR on 6 September 2006. [Buyer] did not pay the outstanding part of the price of 3,800.- EUR.
On 20 October 2006 the parties concluded a contract of sale under sec. 409 et seq. of the Slovak Commercial Code, under which [Seller] was obliged to deliver the goods specified in the bill of lading 050013 - T for the price set out in the [Seller]'s price list. The parties did not agree on the default interest rate. [Buyer] handed over the goods in the [Seller]'s premises.
[Seller] asserted its right to the purchase price by invoice no. 50060009 drawn on 20 October 2006 for the sum of 9,600.- EUR, due on 03 November 2006. [Buyer] paid the sum of 4,600.- EUR on 21 October 2006. [Buyer] did not pay the outstanding part of the price amounting to 5,000.- EUR.
Under article 1 of the Council Regulation (EC) no. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, this Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.
Under article 5 part 1 a) and first section of b) of the Council Regulation (EC) no. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, a person domiciled in a Member State may, in another Member State, be sued in matters relating to a contract, in the courts for the place of performance of the obligation in question, for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered.
Under sec. 48 of this act, Slovak courts try the case in accordance with Slovak procedural law and all parties to the dispute are equal in the proceedings.
Under sec. 86 part 3 of the Slovak Civil Procedure Code (hereinafter referred to as "CPC"), the foreign legal person can be sued at the court situated in district of the Slovak Republic where such a person has representation or authorised body for management of its commercial matters.
Under sec. 105 part 1 of CPC, the court examines existence of its territorial competence only under sec. 88. If, however, the plaintiff acts in more proceedings or if the defendant challenged the territorial competence of the court, the court also examines its territorial competence under sections 84 to 87. The court examines its territorial competence before acting in the proceedings. After initially trying the subject matter of the case, the court examines its territorial competence only if a party to the proceedings contests such competence by the time of its first act in the proceedings.
The dispute involves a legal relationship between the parties having their registered offices in different member states of the European Union, therefore the jurisdiction of the court shall be governed by the law of the Communities, primarily by the Council Regulation (EC) no. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters. In accordance with the abovementioned provisions of this regulation, courts of the Slovak Republic have jurisdiction over this case because of the place of performance of the contract. The territorial competence of the court is governed by provisions of the CPC, which prescribes that such a competence is established if the defendant's representation or his authorized body is situated in the district of the court. Since no such bodies of [Buyer] under sec. 86 part 3 CPC are situated in the area of this court, the court had no power to examine the existence of the territorial competence under sec. 86, because the requirements set out in sec. 105 part 1 the CPC were not met.
Under sec. 1 of act no. 97/1963 Coll. on international private and procedural law as amended, this act prescribes which law is applicable to civil, commercial, labor and other relationships with an international aspect, prescribes legal status of foreigners and prescribes procedure of Slovak judicial authorities when regulating these relationships, making decisions about them and thereby promoting international cooperation.
Under sec. 2 of act no. 97/1963 Coll. on international private and procedural law, the provisions of this act apply, unless otherwise provided by the international treaty ratified by the Slovak Republic or by a statute enacted in connection with such a treaty.
Under article 1(1) of the UN Convention on Contracts for the International Sale of Goods, published as no. 160/1991 Coll., this Convention applies to contracts for sale of goods between parties whose places of business are in different States:
The dispute in question involves a foreign aspect and the court therefore applied the provision of act no. 97/1963 Coll. on international private and procedural law to determine the applicable law, i.e. to determine which state's law shall be applied to qualify the legal relationship in question. With reference to the abovementioned provisions, the court determined that the legal relationship between the parties shall be qualified under the UN Convention on Contracts for the International Sale of Goods and in matters not expressly set out therein, by provisions of the Slovak Commercial Code.
Under article 14 part 1 of the Convention, a proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.
Under article 53 of the Convention, the buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.
Under article 55 of the Convention, where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.
Under article 78 of the Convention, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.
Under sec. 369 part 1 of the Slovak Commercial Code if a debtor is in default in fulfilment of a monetary obligation or its part, and no rate for paying interest on the sum has been agreed upon, the debtor is obliged to pay interest corresponding to the general interest rate prescribed by the National Bank of Slovak Republic in effect on the first day of the half-year in which the default emerged, raised by 10%. Such interest rate shall apply for the entire half-year.
The court gathered evidence by reading the documents submitted by [Seller], bills of lading and invoices and found that on 6 September 2006 and 20 October 2006 the parties concluded two contracts of sale in accordance with provisions of the Convention on Contracts for the International Sale of Goods and that [Buyer] did not fullfil his obligations under these contracts duly and on time and therefore is obliged to pay the residual part of the purchase price to [Seller] together with default interest. The court found that [Buyer] partially paid both invoices by payments made on 6 September 2006 and 21 October 2006. Since the parties did not agree upon a purchase price, [Buyer] was obliged to pay the price under article 55 of the Convention, which, in the court's opinion, corresponds the invoiced sums. Being in default with payment, [Buyer] was also obliged to pay the interest as prescribed by article 78 of the Convention but since the Convention does not specify the interest rate, it was set with reference to sec. 369 part 1 of the Commercial Code, where the actual interest rates of the National Bank of the Slovak Republic were found on the Bank's internet website.
With reference to the evidence gathered, the court considered the action lawful and upheld it in its entirety.
The court analyzed the claim for reimbursement of the costs of the judicial proceedings under sec. 142 part 1 of the CPC and granted a full reimbursement of the costs to [Seller], since [Seller] was successful in its entire claim. [Seller] was granted right for reimbursement of the court fee for the action in the amount of 19,560.- Sk and reimbursement of legal aid in the amount of 33,324.- Sk…
Instruction: An appeal against this judgment must be filed with the Regional Court in Nitra via this court within fifteen days of its receipt.
District Court in Nitra, 29 October 2008
JUDr. Sona Vackova, Judge
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of the Slovak Republic is referred to as [Seller] and Defendant of the Republic of Slovenia is referred to as [Buyer]. Amounts in the currency of the European Union (Euro) are indicated as [EUR]; amounts in the currency of the Slovak Republic (Slovak koruna) are indicated as [Sk].
** Juraj Kotrusz is a Slovak lawyer who studied law at the University of Trnava, Slovakia, and at the Hague Academy of International Law. He is also the founder of the CISG Slovakia database.Go to Case Table of Contents